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A guest post from JPM on a very interesting topic. Opinions expressed reflect those of the author alone -Adam

By jpmassar (aka JPM on P8TT)

No one should vote on other people’s rights. That’s why we have a Constitution, a Bill of Rights and the 14th amendment, judicial review of legislation, and a federal amendment process that demands a supermajority of both Congress and the States to change our basic governing document.

But the Constitution of the United States, and the ‘fundamental rights’ the Supreme Court has said are ours inherently, have never yet been interpreted to preclude the denial of these rights to LGBT American citizens.

And the fact of the matter is, as homophobic organizations delight in telling, LGBT rights have been voted on by the people of the United States at least thirty one times, and every time said people have done so said rights have gone down to defeat.

Partly as a result of these votes, and partly out of the strong belief that people should not as a matter of moral principle be voting on the rights of others, LGBT organizations, many individual LGBTs, and many allies have taken a strong stand against putting marriage equality on the ballot — fighting the fight if left no other choice (e.g., in California in 2008 and in Maine in 2009), but otherwise eschewing such votes.

The opponents of equality don’t care what tactics they use. If a ballot initiative is the best tactic, they’ll go with that. If intimidating legislators is what’s called for, they’re happy to do that too. If recalling judges will send a chilling message, well, go for it. And if spreading lies and inciting unfounded fears via advertising will get the job done, they have no problem with that either.

Is it the case that for the proponents of equality to forgo the tactic of referendums where winnable is simply handing the opposition a victory by default?

It is time to have a debate about this. Join me on the flip.

Practical Consideration #1:

More Americans than not now support same-sex marriage. Therefore in states with Democratic majorities — where the battle is currently being fought — because Democrats always poll on this issue as more supportive than Republicans, mathematics all but dictates that marriage equality polls more favorably in Blue states than the national polling averages, which are now around 50%.

Practical Consideration #2:

We are now witnessing NOM’s and the Religious Right’s latest intimidation tactics — not against the people, but against their legislators. It is fast becoming impossible to get a marriage equality vote in a State legislature, because the opposition has perfected the technique of waiting until the time is ripe and then unleashing a blinding fury of letters, calls and emails to legislators on the fence, who then quail in fear of God’s Maggie’s Wrath.

Opponents of same-sex marriage have already financed a wave of 500,000 automated calls urging voters to contact undecided lawmakers…Religious opponents of same-sex marriage, meanwhile, have already begun using church bulletins, diocesan newspapers and sermons from the pulpit to encourage their followers to contact legislators and let them know how they feel… “We are willing to spend a million against any Republican senator who votes for gay marriage.”

The upshot is that the most likely outcome of 2011’s state battles for marriage equality will be three strikes and you’re out.

Practical Consideration #3:

To leave the fate of LGBT rights in the hands of nine Supreme Court Justices, four of whom are strongly suspected of an ‘over my dead body’ mentality when it comes to LGBT rights, is one helluva thing to rely on.

What do you think the odds are of the Supremes overturning DOMA, Section 3? If you say more than 50-50 I’d say you’re fooling yourself.

And the odds of them declaring that marriage between same-sex individuals is a fundamental right? I’d say no more than 25%, and that’s being generous.

Practical Consideration #4:

By taking a direct vote of the people off the table as an option, opponents of marriage equality are able to own a persuasive slogan: “Let the voters decide!” All voters — no matter what the issue — say they want to decide for themselves (I’ve never seen a poll where the voters, when asked, said they thought they should not be allowed to vote on an issue). They believe they are perfectly qualified to decide for themselves, and saying the opposition is against it resonates with those on the fence — “Why do they not want to let me vote? Something fishy is going on here…” (Of course this makes no sense in a representative democracy, but there is no law or constitutional provision that says voters have to be sensible).

Let’s look at a few of the effects elsewhere in the world of not being able to let the voters decide:

Australia: 62% of respondents supported the recognition of same-sex marriage, yet the Prime Minister will not allow a vote to be held in Parliament, despite 78% support for allowing that vote.

United Kingdom: 61% agreed with the statement “Gay couples should have an equal right to get married, not just to have civil partnerships” while 33% disagreed. No vote has ever been taken in Parliament.

France: A July 2010 CrÈdoc poll found 61% of respondents in favor of same-sex marriage… A January 2011 TNS-Sofres poll found that 58% of respondents supported same-sex marriage. No vote has ever been taken in the national legislature.

Ireland: A recent poll has found that 61% of people in Ireland are in favor of gay marriage, with only 27% opposed. No vote has yet been taken, although one may happen at some point given the recent turnover in government.

We can see that legislatures worldwide have been reluctant to follow the will of the people, largely for fear of their own religious establishments. It is true that here in the United States most states cannot muster registered or likely voter majority to pass same-sex marriage — yet — (as opposed to an ‘all adults’ majority, which is what most of the national polls sample), but there are exceptions:

— In New Hampshire, the Republicans in the legislature were barely held back from voting away marriage equality this year and may well do so next year. There have been calls for a referendum, which have been rejected in the hope that the Republicans will not be able to muster a veto override. But if marriage equality advocates were to have accepted a referendum proposal, recent polling suggests a margin impossible for right wing homophobes to overcome: 56%-35%, 62%-29% and 59%-34% in favor of retaining the status quo (marriage equality) in three polls taken in 2011. (Note: Binding referenda aren’t actually possible in New Hampshire; the right presumably proposed such a vote to appeal to the ignorant. A non-binding referendum would presumably be a possibility though.)

— In Rhode Island, NOM and its allies had been loudly proclaiming “Let the people vote!”. Yet if the people did vote, every reputable poll in the last couple of years has shown a wide majority in favor of marriage equality (50%-41%, 59%-31%, 60%-31%). Had marriage equality proponents accepted the challenge head on we could look forward to marriage equality in Rhode Island after the next election. As it is, there is no prospect of marriage equality given the makeup of the Legislature and its leadership. Perhaps proponents’ cry should have been “Indeed, let the people vote!”

— In New York, polling shows consistent support for marriage equality (58%-36%, 56%-37%, 57%-38%). The legislature is not reflective of this sentiment, and unfortunately there is no mechanism for ballot initiatives (at least binding ones) in New York State.

— In California, the polling is also favorable: 51%-40%, 51%-42%, 50%-45%. The polling will likely be more favorable come November 2012 (because of continued demographic shifts and evolving social attitudes), and there won’t likely be a more favorable electoral demographic than the 2012 California electorate until 2016.

Yet Equality California and national LGBT organizations are still gnashing their teeth and debating whether ‘the time is right’ for a vote, or whether the endlessness of the Proposition 8 trial should be allowed to continue until someday Anthony Kennedy flips a coin to decide the fate of same-sex marriage in California and possibly the entire United States.

Perhaps it’s time to let the people of California undo their mistake. Surely it would be an enormous effort. Money, time and effort will be needed in abundance. But the result — the largest state in the Union once and for all putting to rest the myth that the people will not vote for marriage equality — will have been worth it. “Indeed, let the people vote!”

— In Maryland, everyone knew that if the legislature passed marriage equality it would go to the voters as a ballot initiative. Would the legislation have passed the Assembly if proponents had agreed up front to a ballot initiative? Would it have provided cover for the two or three Representatives that the bill was short by to vote for it? We don’t know, but it might have.

Polling had indicated it would have been close. The two most recent results were 51%-44% and 46%-44% in favor. But at least it would have stood a chance. Now the prospects for the legislation — despite the Legislative Leadership’s claim to bring it up again in the 2012 session — seem more like a) slim, or b) none.

“Indeed, let the people vote!”

— In Minnesota, the Republican legislature is proceeding apace to put on the 2012 ballot a constitutional amendment prohibiting same-sex marriage. But have they miscalculated?

In Indiana, a far more conservative state than Minnesota, a recent poll showed that a plurality of voters (47%) opposed a similar constitutional amendment, while 43% were in favor. In 2009, a Minnesota Star-Tribune poll reported that only 33% wanted such a constitutional amendment, 34% were confortable with the status quo (a law forbidding same-sex marriage) and 25% were in favor of same-sex marriage. In October of 2010, a Humphrey poll showed that 41% were in favor of marriage equality, with 49% against it (being against marriage equality does not necessarily mean favoring a constitutional amendment, so this is a relatively good result).

This evidence, along with prospective continued social change, suggests that by November of 2012 the homophobic right wing could be in for quite the shock in Minnesota. Perhaps they will no longer be saying

“Indeed, let the people vote!”

As acceptance of gay marriage becomes ever more prevalent in society, more and more states will able to pass a referendum legalizing same-sex marriage — and more and more state legislators and judges will be on the receiving end of the religious right’s increasingly desperate yet all too effective attacks.

Is the LGBT community willing to continue to renounce the use of the referendum? A tool that once successfully employed — so that the claim that the people will not vote for marriage equality is debunked forever — could knock years off the fight?

Yes, I agree that people should not be voting on the rights of others, and if the Supreme Court were not composed mainly of white Republican males, it might be best to let the courts rule, taking such time as they will. But they already have, and it is.

I see the new & improved P8TT is here. I miss the reply hierarchy, tho. It is hard to tell who is replying to whom.

2. AnonyGrl | May 9, 2011 at 1:13 am

Tough call.

Should we say "Well, now that we can muster a majority, OK, LET the people vote"? Does the fact that we might win that way make it any more RIGHT to do so?

I am not sure.

Because what happens the next time? When some other group is looking for civil rights, and now WE are on the side of voting them down? Or is it only OK to vote on civil rights if we know it is going to pass?

I know, sometimes the results are more important than the tactics used to get them (which is a fancy way of saying the ends justify the means). But I persist in thinking of us as better than that, even if we lose a battle or three, and I believe that we will win the war.

All of which is to say, POLITICS SUCK. I hate that we have to play these games. And I don't know what the best answer is.

Another bit of wisdom from Justice Jackson, who was the chief U. S. prosecutor at the Nuremberg war crimes trials after WWII:

"The framers of the Constitution knew, and we should not forget today, that there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected." Railway Express Agency, Inc. v. New York, 336 U. S. 106, 112-113 (1949) (concurring opinion).

5. Ronnie | May 9, 2011 at 1:25 am

Subscribing and sharing…..

727 religious leaders of New York show their support for Marriage Equality…..These are the Americans whose Religious Liberty/ 1st amendment rights are being violated by NOM, etc. etc with their (anti-gay people) repugnant thirst for an anti-American & anti-freedom religious based dictatorship…… <3…Ronnie:

I don't like not being able to reply and I REALLY don't like the thumbs up and thumbs down. This isn't a popularity contest and it isn't facebook. I don't care if people "like" or "dislike" Cookie's or Peter's or my post, I want to read what they have to say about it. But that's hard too with no reply-just a long list of comments. Not good at all.

AND, the reply hierarchy is gone from old posts.

And I really hope we don't have to enter the code from the image above each and every time we want to post a message…

*b*tch b*tch b*tch!*

(I do like being able to subscribe without commenting, but that didn't seem really necessary, though…)

The main drawback to the idea of just going for the vote now that we have the majority is that this will bring an end to the trials which would once and for all declare that this IS a fundamental right and that it should NOT be subjected to a vote. And unless we follw through on that course, our rights will be subjected to a constantly shifting 'popularity contest' at the polls every few years, over and over again.

And I also do not like the loss of the REPLY function.

17. JPM | May 9, 2011 at 2:27 am

@DaveP

which would once and for all declare that this IS a fundamental right

Or, which would once and for a long time declare that this IS NOT a fundamental right…

With, in my opinion, a significantly greater chance of it happening the latter way than the former.

I'm logged into WordPress — why do I have to fill out these boxes (no – I never had to fill them out before when logged into WP).

No reply button. No automatic sign-in. Captcha code. No likey.

22. PoxyHowzes | May 9, 2011 at 2:56 am

@ Ronnie, #5

I really think that Ronnie's comment needs to be waged much more forcefully in the fight against NOM. In fact, NOM is dead-set against not only the 'fundamental' right to marry, but also against the fundamental (and explicit) right to practice one's own religion in one's own way.

It's time they stopped getting a free ride on this aspect of their anti-American bigotry.

23. Adam Bink | May 9, 2011 at 3:03 am

CAPTCHA, which is used to eliminate spam as well as deter trolls, is taken care of when you log in. Enter username, password, and check off "Remember Me", and you don't have to worry about it. To make your life even better, have your browser remember your username and password, and you're all set.

24. karen in kalifornia | May 9, 2011 at 3:10 am

jpmassar,

In Consideration #1, favoring marriage equality DOES NOT EQUAL mobilizing to vote against a marriage amendment. Prop8 vote was just one example.

As for going back to the vote in CA to vote away the amendment….it takes lots of money and it's difficult to get people to change their vote once they voted 'yes" on prop8.

The fact that the ANTI gay machine can mobilize votes against equality has not been addressed. Antigay amendments will continue to pass because of the scare tactics NOM has perfected and the money machine behind them that is shielded from scrutiny.

In MN there is a ray of hope the antigay amendment wouldn't pass because of that state's technicality that a NOT VOTING will equal a NO vote. In other words, if someone feels uncomfortable voting on marriage, like it's not there business ….a NOT VOTING is a NO vote. Other states don't have this.

It is not time yet to have the mob vote on my rights.

A better job could be done of knowing how legislators feel about legislations. For instance in Rhode Island, I only found one list of "Equality Winners" posted by MERI…even some of the Equality winners turned out not to be for equality. And even without a vote on record there must be some way to know how a representative is likely to vote. I couldn't find such a resource anywheres. How can I put pressure on a legislator who is on the fence if I don't know who they are. And that's just RI. Time to get that info about MN out there.

25. StevenJ | May 9, 2011 at 3:10 am

One of the more random-thoughts posts than I've seen here at P8TT in a long time, but as with all of them, some nuggets of information to digest in seeking civil marriage equality.

Adam: There is no "remember me" where comments are left. There is a "notify me," but I don't want to subscribe to every post in order to avoid the constant Captcha requirement.

28. Nyx | May 9, 2011 at 3:37 am

Perhaps we will soon be able to win some states by popular vote. But the increase in equality support is not even across the country. I'm afraid it will require a Supreme Court decision to bring some of the southern states into the current century.

29. Adam Bink | May 9, 2011 at 3:50 am

Hi fiona: Some improvements simply are not possible on this platform. There are some things I'd like to have that we can't. Without spending lots and lots of money on a from-scratch, custom-built platform, sometimes it's hard to do everything we requested. But, we are trying to do as many as possible.

30. Adam Bink | May 9, 2011 at 3:55 am

@Kate

The "Remember Me" isn't found on the comments. It's found on the WordPress login.

31. LCH | May 9, 2011 at 5:42 am

♀♀=♂♂=♀♂=∑♡

32. Sagesse | May 9, 2011 at 6:09 am

A very thoughtful post, and a subject worth discussing.

First of all, civil rights should never be put to a vote. However, they can be and they are.

The concern I would have about any referendum at this point is the need to 'get out the vote'. The older anti-equality conservative base is disproportionately likely to vote anyway. My guess would be you would need at least a 10% spread (60% polling in favour of equality), or maybe more before a referendum result would match the result shown by opinion polls. Don't think even the most favourable states (say, NY at 58%) are quite there yet.

33. Paul in Minneapolis | May 9, 2011 at 9:51 am

"In Minnesota, the Republican legislature is proceeding apace to put on the 2012 ballot a constitutional amendment prohibiting same-sex marriage. But have they miscalculated?"

They very well may have.

This short commentary, published yesterday in the Minneapolis Star Tribune, is worth a read:

Between the letter and the commentary, it is difficult to tell if Prof. Painter is opposed to this amendment because he believes in marriage equality or because he fears consequences for Republicans (he was associate counsel to the president and chief White House ethics lawyer under George W. Bush, making it very likely that he is a Republican himself). However, the mere fact that he would voice the latter marks a profound moment for marriage equality proponents.

To date, the only amendments anyone has been able to vote on is to ban marriage equality — not to establish marriage equality as a constitutionally protected right. There are people who are opposed to both marriage equality and to amending constitutions to define marriage in any particular way. But the point is that, to date, the people have not been given a fair choice in the voting booth.

But could this work to our advantage? If we Minnesotans vote down this amendment — and we very well may — and if we vote it down by a wide margin — less probable, but still possible — could we claim a mandate for marriage equality?

What if Minnesotans vote against this amendment and, in the same election, replace Republican majorities with Democratic majorities — exactly what Prof. Painter fears? Of course there are many, many awful things Republicans are trying to do here, and voters will have a wide variety of reasons to vote them out in November 2012 — but what stronger message could be sent than a combined defeat of this amendment and flipping legislature majorities from Republican to Democrat?

My pie-in-the-sky dream is that this happens — and that the very first bill the newly elected Democratic legislature passes (and which Gov. Dayton has already said he will sign) is a marriage equality bill.

I completely agree with everyone who is opposed to anyone's rights being put up for a popular vote. But as one letter to the editor of the Star Tribune said today, perhaps we should have faith that our electorate here will denounce bigotry, and demand that this be put to a vote so it can be firmly defeated. If my above scenario seems likely, I'm beginning to agree: bring it on!

[…] Prop 8 Trial Tracker » “Indeed, Let the People Vote!” — A … In fact, NOM is dead-set against not only the 'fundamental' right to marry, but also against the fundamental (and explicit) right to practice one's own religion in one's own way. Support the Prop 8 Trial Tracker . […]